The Italian Competition Authority targets an allegedly abusive conducts in the live music ticketing sector




In the Case A523 (Ticketing services/TicketOne) the Italian Competition Authority (ICA) opened an Article 102 TFEU investigation against TicketOne Spa (TO), which was alleged to have abused its dominant position in the market for ticketing services for live music events.
The relevant product market identified by the ICA was the market for the provision of ticketing services in connection for live music concerts whose geographical scope was national. Running the leading ticketing platform accounting for a 70-80% market shares, TO was found to have a dominant position within this market. TO succeeded in reaching this leading market position, amongst other things, by implementing two vertical agreements concluded with the former member of the Panischi company and a number of promoters that organized the live music events (the Panischi agreements) that were exempted by a decision made by the ICA on 14 March 2002. The first Panischi agreement conferred on TO a 15-year exclusivity for the on-line distribution of a gradually increasing quota of the tickets for the events organized by the promoters. Under the second Panischi agreement, TO and the music promoters agreed on a 15-year mutual non-competition clause. In practice, over the 15-year length of the individual exemption granted by the ICA, TO enjoyed an absolute protection for the on-line sale of the tickets for the events held by the promoters. Over the same period, TO substantially increased its share in the relevant market, being the main ticketing platform in Italy. Other factors on which the ICA gounded the finding of a dominance position was the vertical integration nature of TO and that the market shares of its next competitors were much smaller.
At the end of the individual exemption for the Panischi agreements, expired on 31 July 2017, the ICA had concerns that TO might have abused the dominant position conquered during the exemption period. Thence, the ICA decided ex officio to open an Article 102 TFEU investigation against TO.
More specifically, the ICA looked at the agreements concluded by TO with further promoters during the 2013-2016 period. Similarly to the Panischi agreements, also these arrangements gave TO the exclusive right to distribute a large portion of tickets and an absolute protection for the on-line ticketing channel. In 2016 these promoters concluded new exclusive distribution agreements with TO. In the view of the ICA, these conducts were part of a foreclosing strategy pursued by TO in breach of Article 102 TFEU. Indeed, TO tied the main music promoters by concluding with them exclusive distribution agreements. The intent of TO was to prevent competing ticketing platforms from dealing with music promoters. To this end, TO crystallized its previous de facto monopoly on the online distribution channel and extended its dominant position to the offline channels and other music promoters.
One of the conditions for the granting of individual exemptions is that the exempted agreement do not reduce competition. Unfortunately, this condition was unmet by the Panischi agreements as reflected by the ex-post assessment made by the ICA leading to its decision to open an Article 102 TFEU investigation against TO. Apparently, it was during the period when the individual exemption applied to the Panischi agreements that TO, also by relying on the restrictive clauses in the exempted agreements, substantially increased its market position, becoming the dominant player. The ICA attention was particularly focused on the TO conduct in the last years of the application of the individual exemption. The theory of competition harm taken by the ICA is that during the 2013-2016 period TO signed exclusive distribution agreements with several music promoters with the intent to foreclosing the other providers of ticketing services. As clarified by the EU courts anti-competitive agreements and abusive conducts are autonomous competition breaches. A business practice that has been exempted pursuant to Article 101(1) TFEU may still be found to violate Article 102 TFEU (Van den Berghs Food v Commission, T-65/98).

  

 

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